MEARS & MEARS
[2012] FamCAFC 52
•30 March 2012
FAMILY COURT OF AUSTRALIA
| MEARS & MEARS | [2012] FamCAFC 52 |
| FAMILY LAW – APPEAL – DECLARATION – Validity of marriage – where the trial Judge made a declaration of validity of the marriage as sought by the wife and husband – where the wife appealed against the making of the declaration – where the wife alleged that the trial Judge applied “a wrong principle of law” and submitted that her marriage to her husband is not a valid marriage because one of the witnesses at the marriage was at that time under the age of 18 – where the wife sought an order “to be able to be married again” – where the Full Court found there was nothing the appeal court could do to remedy any error made by the wife or by her legal representative in relation to the relief sought in the application before the trial Judge – where the Full Court upheld the trial Judge’s application of s 44 and s 48(2)(e) of the Marriage Act 1961 (Cth) – no appealable error established – appeal dismissed |
| Family Law Act 1975 (Cth) ss 4(1), 113 Marriage Act 1961 (Cth) ss 44, 48(2)(e) Statute Law Revision Act 2011 (Cth), No. 5, 2011, Schedule 4, Item 25 |
| APPELLANT: | Mrs Mears |
| RESPONDENT: | Mr Mears |
| FILE NUMBER: | BRF | 20083 | of | 2006 |
| APPEAL NUMBER: | NA | 30 | of | 2011 |
| DATE DELIVERED: | 30 March 2012 |
| PLACE DELIVERED: |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Finn, May and Strickland JJ |
| HEARING DATE: | 6 September 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 August 2006 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | In person |
Orders
The appeal against the declaration contained in the order made by the Honourable Justice Coleman on 29 August 2006 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mears & Mears has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 30 of 2011
File Number: BRF 20083 of 2006
| Mrs Mears |
Appellant
And
| Mr Mears |
Respondent
REASONS FOR JUDGMENT
This is an appeal by the wife against the following order made by Coleman J on 29 August 2006:
(1)IT IS DECLARED THAT the marriage of [Mr Mears] and [Mrs Mears] celebrated [in Queensland] in Australia [in October 1970] was and remains a valid marriage in accordance with the provisions of the Commonwealth Marriage Act 1961.
The wife was given an extension of time to file this appeal by an order made by May J on 23 May 2011.
As indicated by Coleman J in his reasons for judgment, this case arises out of concerns by the appellant, the wife, that her marriage to her husband is not a valid marriage because one of the witnesses at the marriage was at that time under the age of 18.
The wife’s concerns arise out of s 44 of the Marriage Act 1961 (Cth)
(“the Marriage Act”) which provides that:
A marriage shall not be solemnised unless at least 2 persons who are, or appear to the person solemnising the marriage to be, over the age of 18 years are present as witnesses.
However, s 48(2) of that Act then relevantly provides:
A marriage is not invalid by reason of all or any of the following:
…
(e) failure to comply with the requirements of section 44 …
We note that these sections of the Marriage Act have been amended since the declaration now appealed was made. But the amendments have only been for the purpose of changing the spelling of certain words. (See Statute Law Revision Act 2011 (Cth), No. 5, 2011, Schedule 4, Item 25).
Background
On 23 August 2006 the wife and the husband filed an application in the
Family Court in which they sought a declaration that their marriage in Queensland in October 1970 was valid. In support of that application both the husband and the wife filed affidavits (both of which were sworn and filed on 23 August 2006).
In her affidavit the wife explained that the reason for the application for the declaration was that one of the witnesses to her marriage to the husband in October 1970 was not at that time aged 18. She went on to explain that before her wedding she had been told by the Anglican Dean in Queensland, who was to officiate at the wedding, that she needed a witness who was over the age of 18, and that the Dean “said something like: ‘you won’t be married if your witness is not over the age of 18’”. Despite this advice from the Dean, the wife had her friend, Ms P, whom she knew “was not 18 … [not] even quite 17 years old” as her witness.
The wife went on to explain that over the years she has become concerned that she was not properly married because of the age of her witness,
Ms P. It emerges from the concluding paragraphs of the wife’s affidavit that because she wanted to live with her husband “in a marriage which is valid in the eyes of the law and in the sight of God” she was seeking the declaration that her marriage was valid.
In his affidavit the husband stated that he did not hold the same concerns as did the wife in relation to the validity of their marriage, but that he was aware that the wife had been concerned about the matter “for many years” and that he “would like to see a resolution” of her concerns with a declaration that their marriage was valid.
Proceedings before Coleman J and his reasons for judgment
The parties’ application for a declaration of validity of marriage was heard by Coleman J on 29 August 2006. The parties were represented by Counsel on that occasion who made submissions having regard to the affidavit evidence of the parties.
At the conclusion of the hearing his Honour delivered ex-tempore reasons for judgment and made the declaration now appealed.
His Honour commenced his reasons for judgment by explaining that the parties’ application had been brought pursuant to the provisions of s 113 of the Family Law Act 1975 (Cth) (“the Family Law Act”), which provides:
In proceedings of the kind referred to in paragraph (b) of the definition of matrimonial cause in subsection 4(1), the court may make such declaration as is justified.
His Honour then referred to the provisions of paragraph (b) of the definition of “matrimonial cause” in s 4(1) of the Family Law Act, which are as follows:
matrimonial cause means: …
(b) proceedings for a declaration as to the validity of:
(i) a marriage; or
(ii) a divorce; or
(iii) the annulment of a marriage;
by decree or otherwise …
Having recorded that the application before him was for a declaration that the parties’ marriage was valid, his Honour explained that:
4.… this application arises because of the concerns, particularly on the part of the wife, that her marriage to the husband was invalid by reason of the fact that she believes one of the attesting witnesses to the marriage certificate was not, at the time the marriage was entered into, 18 years of age or over.
His Honour then referred to the affidavit evidence of the wife (which we have referred to above) concerning the advice given to her before the marriage by the Dean regarding the need for the witness to be over 18 and to her understanding that her witness, Ms P, was not 18.
His Honour then observed that there were three possible bases on which the Court could uphold the validity of the marriage and he proceeded to canvass each of those bases.
The first was that there was no admissible evidence before the Court that the witness in question was under 18 at the time of the marriage.
The second basis upon which his Honour considered the Court could declare the marriage valid, arose from provisions of s 44 of the Marriage Act which we have earlier set out, and which provides that a marriage shall not be solemnised unless at least 2 persons who are, or appear to the person solemnising the marriage to be, over the age of 18 are present as witnesses.
Having set out s 44, his Honour observed that it is “inconceivable” given the warnings that the Dean had given the wife regarding the age of her witnesses, that he “would not, [in] October 1970, have been diligent in satisfying himself that the witnesses were, or appeared to be, over the age of 18 years”.
The third basis identified by his Honour for a declaration of validity was provided by s 48(2) of the Marriage Act, which we have also earlier set out. That sub-section expressly provides in paragraph (e) that a failure to comply with s 44 (which requires a witness to a marriage to be, or to appear to the marriage celebrant to be over 18) does not invalidate the marriage.
Having considered these three matters, his Honour “unhesitatingly” declared “that the marriage solemnised between the parties [in] October 1970 was and remains a valid marriage in accordance with the provisions of the Marriage Act 1961 (Cth)”.
The issues raised on the appeal
Having been given leave to appeal out of time by May J on 23 May 2011,
the wife filed a notice of appeal on the following day 24 May 2011. She then filed on 12 August 2011 a summary of argument together with affidavits from herself and from Ms P (who is now known as Ms N). At the hearing of the appeal the wife sought and was permitted to rely on an amended notice of appeal, which she had signed on 19 August 2011.
On 12 August 2011 the husband had also filed a summary of argument in which he stated: “I am not participating in the appeal, however I support and respect [my wife’s] conscience in this matter”.
It has to be said that neither the grounds of appeal contained in the wife’s original notice of appeal nor the grounds contained in her amended notice of appeal are competent grounds of appeal. Rather in her notices of appeal she expresses concern that her witness, Ms P, was not 18, and thus the requirements for a valid marriage have not been met. She maintains that she did the wrong thing at the time of the marriage, that she knows that the marriage “is not legally binding”, and that God has led her “to do the right and moral thing in this situation”.
The orders which the wife seeks in both her original and amended notices of appeal are, in summary, “[t]o get married, properly this time with two legal witnesses …”.
In her summary of argument, the wife alleges that Coleman J “applied a wrong principle of law”. But nowhere in her summary of argument, does she appear to explain the alleged error of principle. It will, however, be useful to set out the first paragraph of her summary of argument in which the allegation of an error of principle appears because this paragraph provides insight into
the wife’s concerns and the source of those concerns:
I believe Justice Coleman applied a wrong principle of law, as I believe out of my relationship with GOD, HE has given me many confirmations about this matter and shown me that this is a wise decision that I be responsible for this action. I know I should never have signed the affidavit back then saying that we wish for the Judge to declare our marriage valid, when I knew deep down that it wasn’t.
I know GOD has led me to put this right as our marriage is not binding or above board because the legal requirements were not met before the marriage could be solemnized.
I went ahead rebelliously even after being told by the minister that the witnesses must be 18 or over or we wouldn’t be married, and I used my oldest bridesmaid who was not of legal age.
In later passages of her summary of argument, the wife takes issue with the provisions of s 44 and s 48 of the Marriage Act as being not only “compromising but a contradiction”.
Later again in her summary of argument, the wife raises, amongst other things, issues concerning Ms P’s name and difficulties between
Ms P’s parents, as well as further issues concerning her own understanding of God’s attitude and will in relation to her situation.
Towards the conclusion of her summary of argument, the wife explains that the orders she is seeking are “to be able to be married again”.
Many of the matters raised in the wife’s summary of argument are then raised again in her affidavit of some nine pages filed on the same day as her summary of argument (12 August 2011). One particular statement in her affidavit (at paragraph 4) is that she was very sorry that she had allowed the solicitor (presumably her Counsel at the hearing before Coleman J) “to ask that we be declared legally married when I knew deep down this was not right and knew this was a compromised situation”.
In her affidavit Ms P (now Ms N) confirms that at the time of the husband and wife’s marriage she was 17 years old and she attaches her birth certificate. She also explains issues surrounding her parentage and her name as it appears on the birth certificate.
We mention in passing that although there was no formal application to adduce further evidence on the appeal, we were prepared to receive the affidavits of the wife and Ms P (now Ms N) as, in our view, the interests of justice required us to understand as fully as possible the wife’s case.
In her oral submissions at the hearing of the appeal, the wife raised again many of the matters which she had raised in her written material and which we have endeavoured to summarise above. Before us she emphasised in particular that there were matters which should have been raised before Coleman J but were not raised and that what she should have sought at that time was a “declaration of invalidity” of her marriage; that her concerns regarding the validity of her marriage arose from her use of a witness who was under 18, notwithstanding the Dean’s warnings, and also from the uncertainty which has now emerged concerning Ms P’s correct surname because of difficulties between Ms P’s parents; and that in her view there is a contradiction between s 44 and s 48 of the Marriage Act.
Discussion and Conclusion
There is nothing that this appeal court can do to remedy any error made by
the wife or by her legal representative at the relevant time, in relation to the relief sought in her application filed on 23 August 2006 and heard by
Coleman J on 29 August 2006. What was clearly sought in that application and what his Honour decided, was an application for a declaration of validity of the marriage.
A “declaration of invalidity” (or more correctly a decree of nullity of marriage as referred to in paragraph (a)(ii) of the definition of “matrimonial cause” in s 4 of the Family Law Act) was not sought, and as we have said, there is nothing that can now be done about that. We would, however, venture to suggest that an application for a declaration of nullity based on the matter raised in support of the application for the declaration of validity of the marriage (being the age at the time of the marriage of one of the witnesses to the marriage) would have no prospect of success, essentially for the same reasons that the declaration of validity was made.
In relation to the requirements of s 44 of the Marriage Act concerning the presence of witnesses at the solemnisation of a marriage, the important concept in the section for purposes of the present case is that the witness or witnesses appeared to the person solemnising the marriage to be over the age of 18 years. Although there is no evidence from the Dean, who performed the marriage of the husband and wife, concerning his impression at the time of the age of the witness in question, it is, as Coleman J found, “inconceivable” given the strong warning which according to the wife’s own evidence, he gave her, that he would not have satisfied himself on the day that the witnesses present appeared to be over the age of 18 years.
But even if this conclusion reached by Coleman J and ourselves that it is inconceivable that the Dean would not have satisfied himself regarding the appearance of the age of the witness, s 48(2)(e) of the Marriage Act expressly provides that a marriage is “not invalid” because of a “failure to comply with the requirements of section 44”.
It could therefore not be clearer that as a matter of law, the wife’s marriage is not invalid because her witness, then known as Ms P, was under 18 at the time of the marriage (as the affidavit from Ms P, now Ms N, and its attached birth certificate now establish).
As to the apparently new issue which the wife has raised on this appeal concerning the details on Ms P’s birth certificate regarding her parentage and her name, nothing can turn for the purposes of this case on these matters. A person’s name is a matter of repute and does not have to remain that which appears on their birth certificate. A person’s parentage does not affect their capacity to be a witness at a marriage.
The appeal must therefore be dismissed and the declaration of validity made by Coleman J’s order must stand.
We understand that this decision will be a disappointment to the wife. But as we endeavoured to explain to her when we heard the appeal, all that the courts can do is to assure her that despite the warnings which she may have been given by the Dean at the time of her marriage and despite the subsequent advice she has received from various persons and organisations regarding the requirements for a valid marriage, her marriage is valid in the eyes of the law.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, May and Strickland JJ) delivered on 30 March 2012.
Associate:
Date: 30.03.12
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